State of N.C. v. F.A.A., 90-1768
| Decision Date | 23 March 1992 |
| Docket Number | No. 90-1768,90-1768 |
| Parties | STATE OF NORTH CAROLINA; William W. Cobey, Jr., Secretary of the Department of Environment, Health and Natural Resources, Petitioners, v. FEDERAL AVIATION ADMINISTRATION; Samuel K. Skinner, Secretary of Transportation; James B. Busey, Administrator, Federal Aviation Administration, Respondents, Carteret County Crossroads, Incorporated; Home on the Range, Incorporated; Albemarle Commission; the Conservation Council of North Carolina; Valley Citizens For A Safe Environment; Downwinders, Incorporated; North Carolina Airspace Coalition, Incorporated; Citizen Alert, and the Rural Alliance For Military Accountability, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas Frederick Moffitt, Sp. Deputy Atty. Gen., and Isaac Clark Wright, Jr., Associate Atty. Gen., argued (Lacy H. Thornburg, Atty. Gen., on brief), North Carolina Dept. of Justice, Raleigh, N.C., for petitioners.
Martin William Matzen, U.S. Dept. of Justice, argued (Richard B. Stewart, Asst. Atty. Gen., Dirk D. Snel, U.S. Dept. of Justice, Sheila Hughes Rodriguez, Office of Chief Counsel, Federal Aviation Admin., Stephen A. Banks, Cdr. and Ronald Borro, Judge Advocate Gen. Corps, Department of the Navy, on brief), Washington, D.C., for Respondents.
John D. Runkle, Chapel Hill, N.C., on brief, for amici curiae.
Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and BUTZNER, Senior Circuit Judge.
The State of North Carolina petitions for review of a final rule issued by the Federal Aviation Administration (FAA) in Airspace Docket 85-ASO-16, 55 Fed.Reg. 11897 (March 30, 1990) (), revoking, realigning, and establishing restricted airspace over eastern North Carolina at the request of the Navy. The rule's principal deficiency, according to the State, is the FAA's failure to conduct an independent assessment of environmental impact, to consider the cumulative impact of existing and proposed restrictions of airspace, and to prepare an environmental impact statement. The State asserts that this and other deficiencies constituted violation of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347; regulations issued pursuant to that Act by both the FAA, Order 1050.1D, Policies and Procedures for Considering Environmental Impacts (1986), and the Council on Environmental Quality (CEQ), 40 C.F.R. §§ 1500-17 (1991); the Federal Aviation Act, 49 U.S.C.App. §§ 1301-1553, and implementing regulations, specifically FAA's Procedures for Handling Airspace Matters, 7400.2C (FAA Handbook ). The State does not seek an injunction pending review, but it asks that we set aside the rule pursuant to 49 U.S.C.App. § 1486(d).
Concluding that the FAA properly issued the rule, we deny the petition.
Jurisdiction to review the State's petition rests on 49 U.S.C.App. § 1486(a). The standards of review are well established. If supported by substantial evidence, the FAA's findings of fact are conclusive. 49 U.S.C.App. § 1486(e). We review questions of law de novo. 5 U.S.C. § 706.
A federal agency must prepare an environmental impact statement for a major federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An agency must prepare an environmental assessment in order to determine whether an environmental impact statement is necessary. 40 C.F.R. § 1508.9 (1991). If the agency decides that no environmental impact statement is required because the proposed action will not have a significant impact, it reports its decision in a finding of no significant impact (FONSI). 40 C.F.R. § 1508.13 (1991). The standard of review of an agency's decision not to prepare an environmental impact statement is whether the agency's decision was arbitrary or capricious. 5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-78, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989); Webb v. Gorsuch, 699 F.2d 157, 159 (4th Cir.1983). To apply this standard a
court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (citations omitted).
Title 49 U.S.C.App. § 1522 directs the FAA, in consultation with the Department of Defense, to establish zones necessary for the national defense and to restrict or prohibit civil aircraft from flying in such zones. The FAA designates these zones as special use airspace. FAA Handbook, p 7000. This case involves a type of special use airspace known as a "restricted area" within which flight of civil aircraft is restricted for safety. FAA Handbook, pp 7300, 7301. When the military is using the restricted area, civilian traffic is prohibited without advance permission. 14 C.F.R. § 73.13 (1991).
For many years prior to this action, the FAA had established and the Navy used four restricted airspace areas in northeastern North Carolina. The restricted airspace commonly known as Harvey Point was designated by three overlapping circles on the aeronautical chart for February, 1990, which has since been superseded, as R-5301A, R-5301B, and R-5301C. This 21.2 square nautical mile restricted airspace was used both to protect aircraft from the hazards of flying over a facility of the Department of Defense's explosive testing agency and as part of a flight path for military aircraft using the Palmetto target. This airspace was continuously restricted.
The Navy used the airspace commonly known as the Palmetto target, designated as R-5302, for practice bombing. This airspace was restricted 15 hours a day and the floor was surface-level. It was most frequently used during the summer when the Dare County target, designated as R-5314, was closed as a result of potential fire hazards.
The airspace known as Stumpy Point, designated as R-5313, was a continuously restricted three nautical mile radius circle over the Stumpy Point target in Pamlico Sound, which was used as a target for conventional inert ordnance.
In December 1985, the FAA, acting on the Navy's request, initiated rule making proceedings to alter restricted airspace over Harvey's Point, the Palmetto target, and the Stumpy Point target. The Navy did not propose any changes to the Dare County target airspace. The initial proposal received much opposition based on aeronautical, social, economic, environmental, and procedural concerns. Federal and state agencies, local governments, organizations, and individuals critically commented. The Navy responded to these concerns by twice changing its proposal. After conducting two public hearings in North Carolina, the FAA issued its final rule modifying the restricted airspace for Harvey Point, the Palmetto target, and the Stumpy Point target in accordance with the Navy's revised proposal.
The modified Harvey Point airspace is now designated on the August, 1990 superseding aeronautical chart as R-5301. As finally revised, Harvey Point airspace is 10.2 square nautical miles rather than its original 21.2 miles. Its airspace is restricted only to protect aircraft from flying over the explosive testing agency facility, not to provide part of a flight path to the Palmetto target. Other portions of old Harvey Point airspace are redesignated into a modified Palmetto target airspace.
A portion of the old Palmetto target airspace is no longer restricted under the final rule, and the modified airspace includes a portion of what used to be Harvey's Point. It also includes additional airspace located at the southwest portion of the original Palmetto target. The new Palmetto target airspace is 65.2 square nautical miles, about one square nautical mile smaller than the old one. The reconfiguration of the Palmetto target airspace narrows the width of an air corridor running between it and the Dare County target. As modified, it is restricted only on 24-hours advance notice. The floor of most of the airspace was raised from the surface to 100 feet above ground level.
The final rule expands the Stumpy Point target airspace in order to accommodate laser-guided standoff weapon training. The Navy estimates the new airspace is 8.33 times greater than the old one. On the new August 1990 aeronautical chart, the original Stumpy Point airspace is designated by R-5313A. The original portion of Stumpy Point will no longer be continuously restricted. It will be restricted from 8:00 a.m. to 11:00 p.m., Monday through Friday, and during other periods on at least 24-hours notice by the Navy to operators of civilian aircraft. The additions to the original Stumpy Point airspace, R-5313B, C, and D, are located entirely over the water of the Pamlico Sound. They will not be restricted more than 20 hours per month.
Initially, the FAA took the position that compliance with the NEPA was the Navy's responsibility. See FAA Handbook, p 7005. It did not review or independently evaluate the Navy's environmental assessments but simply accepted the Navy's statement of compliance with the Act. North Carolina, the General Accounting Office, and the CEQ criticized the FAA's position.
Section 102(2) of NEPA, 42 U.S.C. § 4332(2), directs all federal agencies to comply with the Act. This provision precludes an agency from avoiding the Act's requirements by simply relying on another agency's conclusions about a federal action's impact on the environment. Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1122-27 (D.C.Cir.1971).
An executive order authorized the CEQ to prepare regulations...
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